Corcoran and Comcare (Compensation)
[2015] AATA 776
•6 October 2015
Corcoran and Comcare (Compensation) [2015] AATA 776 (6 October 2015)
Division
GENERAL DIVISION
File Number(s)
2014/3617
Re
Peter Corcoran
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Senior Member CR Walsh
Date 6 October 2015 Place Perth The Tribunal affirms the decision under review.
...(Sgd) CR Walsh.....................................................................
Senior Member CR Walsh
CATCHWORDS
WORKERS’ COMPENSATION – Applicant has “bilateral sensorineural hearing loss” condition – whether Applicant’s hearing loss condition an “injury” or a “disease” – whether Applicant’s Commonwealth employment contributed to his hearing loss condition “to a material degree” or “to a significant degree” – date of disease (injury) - decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 - s 4(1) - s 5A(1) – s 5B(1) – s 5B(2) – s 5B(3) – s 7(4) - s 14
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 – items 11 and 41 of Schedule 1
Workplace Health and Safety Regulation 1997 (Qld)- reg 68(1)
CASES
Australia Postal Corporation v Burch [1998] FCA 42
Banks v Comcare [1996] FCA 382
Comcare v Eteridge [2006] FCAFC; (2006) 149 FCR 522
Comcare v Sahu-Khan [2007] 156 FCR 536; 44 AAR 523
Kennedy Cleaning Services v Petkoska (2000) 200 CLR 286
Re Hanrahan and Repatriation Commission (2008) 102 ALD 399; BC200803180
Re Nolan and Military Rehabilitation and Compensation Commission [2012] AATA 454
Re Repatriation Commission and Delkou (1986) 9 ALD 358
Rose and Military Rehabilitation and Compensation Commission [2015] AATA 583
Sandercock and MRCC [2013] AATA 517
Smith v Comcare [2012] FCA 502
Tralongo and Military and Rehabilitation Compensation Commission [2004] AATA 1242
REASONS FOR DECISION
Senior Member CR Walsh
6 October 2015
INTRODUCTION
Mr Corcoran, presently 64 years old, was employed by Airservices Australia (AA) from 6 June 1978 until his retirement on 22 September 2013.[1] Throughout his employment with AA, Mr Corcoran was involved in the provision of Air Traffic Services via air-ground communications on VHF radio and HF radio, initially as a Flight Service Officer in Sydney, Port Headland, Perth and Brisbane and later as a Flight Information Team Leader in Brisbane.[2]
[1] AA was established in 1995 when the Civil Aviation Authority (CAA) was split to form two separate government bodies, being AA and Civil Aviation Safety Australia (CASA).
[2] Exhibit R1 at pp 56-59 and pp 205-210 and Exhibit A1 at p 14.
Mr Corcoran has a “bilateral sensorineural hearing loss” condition which he considers is as a result of exposure to continual excessive noise levels during his 34 years of employment with AA in Air Traffic Services.
On 28 May 2014, Comcare decided that it is not liable to pay compensation to Mr Corcoran under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) in respect of his “bilateral sensorineural hearing loss” condition. Mr Corcoran seeks a review of this decision.
FACTUAL & PROCEDURAL BACKGROUND
In written submissions (undated), Mr Corcoran describes his employment with AA from June 1978 to September 2013 as follows:
……The job the claimant performed between 1978 and late 2000 (Flight Service Officer) did not change in any way, shape or form. From late 2000 thru commencement of Long Service Leave in March 2012, the core duties of the job remained the same i.e. obtaining/relaying operational information to aircraft via air-ground communications (VHF & HF). The VHF component was removed 2006 approximately. The only difference post late 2000 was how the operational was actioned and disseminated once it was received.[3]
……….
As a Flight Service Officer (FSO) in Sydney 1978 thru 1981, the claimant was subjected to a mixture of 3 Domestic VHF workstations with 3 VHF frequencies per workstation. A Domestic HF workstation with a Network of 4 HF frequencies and 2 (two) International HF workstations with 5 (five) frequencies per workstation. i.e. there were VHF workstations and there were HF workstations.
As a Flight Service Officer in Port Headland, 1982 thru 1986 & 1987 thru 1989, the claimant was subjected to workstations with both VHF & HF on the same console.[4]
……..
These consoles were operated singularly from approximately 6am thru 7pm daily. Outside of these hours the consoles and frequencies were all operated from the FS1 position. Thus, from approximately 7pm thru 6 am, the operator was subjected to 5 VHF and 8 HF frequencies.[5]
………
With the ultimate closure/consolidation, Flight Service as such, Australia wide, was disbanded. On the closure of Perth, the ATS functionality provided from all of the West Australian based sites was moved [in 2000] to Brisbane and functioned under the nomenclature of AusFIC (Australian Flight Information Centre).
The AusFIC provided the same Air Traffic Service as was provided by Flight Service. The getting and receiving of information was identical, via VHF and HF, how the information was disseminated was the only aspect that changed.
With the changeover from Flight Service to AusFIC, the HF frequency of 4684mHz was decommissioned.[6]
[3] Exhibit A1 at p 2.
[4] Exhibit A1 at p 10.
[5] Exhibit R1 at p 11.
[6] Exhibit R1 at p 12.
On 26 August 2013, prior to retiring from his employment with AA, Mr Corcoran underwent an audiogram, the results of which were reported on a CASA audiogram form. That audiogram report shows that Mr Corcoran did not pass the screening test due to having hearing loss above 35 dBHL hearing loss threshold. [7]
[7] Exhibit R1 at p 29.
On 27 August 2013, CASA wrote to Mr Corcoran stating the following:
Audio
Your recent Audiogram has been received, which show that your hearing does not meet the medical standard for your Class 3 medical certificate. In order to continue your assessment, the Aviation Medicine Section requires you to have a repeat pure tone audiogram and (speech test if indicated) performed by an audiologist which may be found in your local Yellow pages.[8]
[8] Exhibit R1 at pp 30-31.
On 10 September 2013, Dr Yim-Kong Wong, General Practitioner, issued a WorkCover “Workers’ Compensation FIRST Medical Certificate” which stated, “exposed HF noise 34 yr” and “deafness detected in audiology” and that Mr Corcoran needed to see an ENT specialist and referred him to Dr lan Mitchell, ENT specialist. That certificate also reported that the date that Mr Corcoran was first seen at that practice in relation to his condition was “22/8/13”.[9]
[9] Exhibit R1 at pp 34-35.
On 17 September 2013, a repeat audiogram was conducted by Western ENT Ear Nose & Throat Specialists.[10]
[10] Exhibit R1 at p 36.
On 20 September 2013, Mr Corcoran submitted a “Claim for Workers’ Compensation” with Comcare in respect of the “Diagnosed condition” of “hearing loss” in both ears which arose as a result of his employment with Airservices Australia. On his claim form:
· In response to question 24 “What were you doing at the time you were injured or contracted your illness?” Mr Corcoran stated “Performing normal duties as per duty statement and rating/endorsement protocols”;
· In response to question 25 “What action, exposure or event happened to cause your injury or illness” Mr Corcoran stated “34 years of exposure to vagaries of VHF & HF air-ground work”; and
· Mr Corcoran stated that he first sought medical treatment on 28 August 2013 for his condition.[11]
[11] Exhibit R1 at pp 38-41.
Mr Corcoran retired from his employment with AA on 22 September 2013.
On 9 December 2013, Dr Ian Mitchell, Ear, Nose & Throat Specialist, provided Comcare with a medical report in relation to Mr Corcoran’s claim for hearing loss. Dr Mitchell had previously examined Mr Corcoran on 17 September 2013, following a referral by his general practitioner. However, Dr Mitchell did not examine Mr Corcoran again, for the purpose of preparing his report dated 9 December 2013. For the purpose of preparing his report, AA provided Dr Mitchell with, among other things, a copy of a report, dated 26 May 2006, prepared by Mr ML Lanchester of Ron Rumble Pty Ltd (Consulting Acoustical & Vibration Engineers) (Ron Rumble Report)[12] and the audiograms which were conducted on 26 August 2013 and on 17 September 2013 by CASA and Western ENT, respectively. Dr Mitchells’ report states:
[12] Exhibit R1 at pp 13-28.
Mr Corcoran has a severe bilateral sensori-neural (inner ear) hearing loss.
………
The possible causation factors of Mr Corcoran’s hearing loss that are relevant to his claim are exposure to excessive noise (noise induced hearing loss) and hearing loss due to ageing (presbycusis). They both produce similar symptoms and clinical findings.
………
Hearing loss due to noise exposure is progressive, accumulative and generally irreversible. In some situations it may be transitory and reversible (temporary threshold shift). Hearing loss due to presbycusis is progressive and irreversible.
I believe that the investigations carried our (sic) by Ron Rumble Pty Ltd support the likelihood that Mr Corcoran’s hearing loss is not duo (sic) to his employment with Air Services.
……….
Similarly the data from Ron Rumble Pty Ltd tends to suggest that Mr Corcoran’s hearing loss is unlikely to have been aggravated by noise exposure.
……….
I feel it is likely that Mr Corcoran’s hearing loss is unrelated to his employment with Air Services.
……….
………As Mr Corcoran’s hearing loss is likely to be due to presbycusis I feel that his hearing loss will probable (sic) deteriorate with time.[13]
[13] Exhibit R1 at pp 67-69.
By determination dated 2 January 2014, Comcare disallowed Mr Corcoran’s workers’ compensation claim for “sensorineural hearing loss (bilateral)” under s 14 of the SRC Act (Comcare Determination).[14]
[14] Exhibit R1 at p 71.
On 5 February 2014, Mr Corcoran requested reconsideration by Comcare of the Comcare Determination.[15]
[15] Exhibit R1 at pp 77-94.
On 28 May 2014, Comcare affirmed the Comcare Determination (Comcare Decision). The Comcare Decision states:
Reasons
In reviewing the determination of 2 January 2014, I have had regard to all the evidence contained within your claim file, the reasons form requesting reconsideration and the relevant provisions of the SRC Act.
………..
Discussion
I also must now consider whether, on the balance of probabilities, your claimed condition was contributed to, to a significant degree by your employment with Airservices Australia. Under the SRC Act “significant degree” means a degree that is substantially more than material. This means, the cause of your claimed condition must be clearly and closely linked to your employment.
After reviewing the evidence on your claim file, Comcare has not been provided with any medical evidence to state that your ailment, sensorineural hearing loss (bilateral) was contributed to, to a significant degree by your employment. This is confirmed by Dr Mitchell who is a specialist in his field and the report prepared by Ron Rumble.
I have considered the evidence before me and I agree that the evidence does not support that your claimed condition was contributed to, to a significant degree, by your employment. Therefore, I consider that the determination of 2 January 2014 was correct and I have affirmed the determination.[16]
[16] Exhibit R1 at pp 341–343.
On 14 July 2014, Mr Corcoran applied to the Tribunal for a review of the Comcare Decision. Mr Corcoran’s stated “Reasons for Application” are:
The review decision is wrong in fact and law and the applicant is entitled to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988.
Ron Rumble Report
The Ron Rumble Report cites the following “Test Objectives”:
(i)Conduct measurements of noise exposure received from headphones by operators of the workstations with AUSFIC; and
(ii) Compare the measured noise levels with legislative requirements.
The Ron Rumble Report states that testing was conducted between 21 to 27 April 2006 and reference was had to the Workplace Health and Safety Regulation 1997 (Qld) which defines the expression “excessive noise” in reg 68(1) as follows:
(1) In this part -
“excessive noise” is a level of noise above -
(a)an 8 hour equivalent continues A- weighted sound pressure level of 85 dB(A), referenced to 20 uPa.31; or
(b)an unweighted peak sound pressure level of 140 dB(lin), referenced to 20uPa.32
(2)For subsection (1), the sound pressure level is the level determined at the worker’s ear without regard to the protection available to a worker wearing hearing protectors, and
measured –
(a)for an 8 hour equivalent continuous A- weighted sound pressure level of 85dB(A) – under AS 1269; or
(b)for an unweighted peak sound pressure level – by a sound level meter with a peak detector indicator complying with AS 1259.1
The Ron Rumble Report states, in summary, that 8 hours at 85 dBA is the maximum permissible level and that exposure to higher noise levels is acceptable however must be for a shorter period each day. For each 3 dBA increase exposure time must be halved.
The Ron Rumble Report stipulates that “Test procedures” were conducted in accordance with Australia/New Zealand Standard 1269.1:2005: Occupational Noise Management and, further, that:
The workstations within the AUSFIC have two operator headphone jacks so the operator can connect on the side of the console with they prefer.
For the purposes of this exercise, the operator’s headphones were connected to one jack and to represent the level received by the operator, another set of identical headphones plugged into the second jack. This headset was then placed on the Artificial Ear Coupler.
As sound level meter connected to the Artificial Ear Coupler was configured to record consecutive 10 minute samples for the entire measurement period.
The meter was set to record the equivalent continuous noise levels…..over each 10 minute sample, using the fast time response as required by the Code….
In accordance with Section C2 of Appendix C of the Code, the noise levels recorded using the Coupler were converted to the equivalent diffuse field Levels….
The data recorded by the Meter was downloaded to computer and imported into an Excel Spreadsheet. The Equivalent Diffuse Field Levels were calculated and graphed.
The Ron Rumble Report records that the following 6 workstations were measured for the following periods:
· Tropic – from 10.00am to 7.20 pm on 21 April 2006;
· Kakadu – from 8.20am to 6.20pm on 22 April 2006;
· Silver – 9.20pm on 22 April 2006 to 8.30am on 24 April 2006;
· Pacific – 9.00am on 24 April 2006 to 9.50 am on 25 April 2006;
· Cocos – 10.00am on 25 April 2006 to 2.50pm on 26 April 2006; and
· Gulf – 26 April 2006 to 2.30pm on 27 April 2006.
The Ron Rumble Report states that the results of testing 6 workstations demonstrated that:
· the peal noise level was typically between 100 and 1200dB(lin), with occasional peaks up to 125 dB(lin);
· the background noise levels were recorded in the range between 50dBA and 70dBA, with the typical reading being around 63dBA; and
· employees usually move around workstations over a shift. At worst, if an employee spent one entire shift at the noisiest workstation, the “highest possible exposure” was calculated to be within a range of 58.5 dBA and 66.5 dBA (weighted over 8 hours).
The Ron Rumble Report concluded:
Based upon these measurements and calculated levels of exposure, the noise exposure of staff from headphone is well below the legislative noise limits. [Emphasis added]
Professor Fagan medical report, dated 31 October 2014
On 28 October 2014, at the request of Mr Corcoran’s then solicitors, Slater & Gordon Lawyers, Mr Corcoran was examined by Professor Paul Fagan, ENT Specialist. Professor Fagan’s medical report, dated 31 October 2014, states:
EXAMINATION
Examination today showed normal tympanic membranes bilaterally. There were no abnormalities in the upper respiratory tract and tuning fork tests were also normal.
AUDIOLOGY
Hearing was tested in a sound proof booth with a calibrated audiometer. Responses were repeatable on ascending and descending threshold measurements…..
………..
OPINION
If it is so that the intensity of noise to which Mr Corcoran was exposed over all the years of employment was some 80db, I am of the belief that his hearing loss is not due to noise exposure. If his hearing loss were to be due to noise exposure it can only be ascribed to his employment to Air Services Australia.
I have studied Mr Corcoran’s audiogram, carried out on 26th August 2013 by what looks to be the Civil Aviation Safety Authority. There is no significant difference between that audiogram and the one that was carried out today.
Overall, I would agree with the report of Dr Mitchell, that noise exposure at work is not the cause of Mr Corcoran’s hearing loss.[17]
[17] Exhibit R2.
Dr Mitchell medical report, dated 24 March 2015
On 24 March 2015, Mr Corcoran was assessed by Dr Mitchell at the request of Comcare’s solicitors, Sparke Helmore Lawyers. In his report of the same date, Dr Mitchell reported, after reviewing Mr Corcoran’s audiogram reports dated 26 August 2013, 17 September 2013 and 28 October 2014, the following:
Mr Corcoran’s audiograms show a severe to very severe hearing loss for high frequency sounds with sparing of the frequencies below 500 Hz. His audiogram is not typical of noise induced hearing loss in that there is no recovery at 4000Hz. However, the shape of the audiogram is not inconsistent with hearing loss due to chronic noise exposure.
……..
The further material provided was a report by Professor Paul Fagan. He agrees that noise exposure at work is not the cause of Mr Corcoran’s hearing loss.
I do not change the opinion expressed in my report of the 09.12.2013.[18]
[18] Exhibit R4.
Dr Mitchell medical report, dated 28 August 2015
In a report to Comcare’s solicitors, Sparke Helmore Lawyers, dated 28 August 2015, Dr Mitchell having reviewed the “Report on Headset Acoustic Level Testing” by Mr Barry McPharlane, dated 1 July 2002, states:
The report had two conclusions:
First conclusion was that the maximum (or peak) noise exposure when wearing headphones was more than 20 decibels below the required maximum.
Second conclusion was that noise levels for an 8 hour period using headsets did not exceed a level of 85 dBA. The highest requirement for an 8 hour period was more than 20 dB below the required maximum threshold.
I believe that this result is consistent with the conclusion reached in my report of [9] December 2013. [19] [Emphasis added]
[19] Exhibit R5.
Dr Mitchell medical report, dated 31 August 2015
In a report to Comcare’s solicitors, Sparke Helmore Lawyers, dated 31 August 2015, Dr Mitchell states:
2.2 Does the Applicant’s enclosed statements and SFIC cause you to alter your opinion on diagnosis and/or causation expressed in your report dated 24 March 2015? Please explain why or why not.
The Applicant’s enclosed statements do not alter my opinion expressed in my report dated 24 March 2015. My rationale is that headset acoustic levels testing in 2002 and in 2006 showed that neither the peak nor the equivalent continuous noise levels exceeded recommended limits.
ISSUES
The relevant issues for consideration by the Tribunal are as follows:
(i)whether Mr Corcoran’s “bilateral sensorineural hearing loss” condition should be characterised as an “injury” or a “disease” for the purpose of the SRC Act;
(ii)if characterised as an “injury”, whether Mr Corcoran’s “bilateral sensorineural hearing loss” condition arose out of, or in the course of, Mr Corcoran’s employment with AA and, if so, what is the date of his “injury”;
(iii)if characterised as a “disease”, whether Mr Corcoran’s “bilateral sensorineural hearing loss” condition was contributed to, to a significant degree, by his employment with AA and, if so, what is the date of his “disease”; and
(iv)whether Comcare is liable to pay compensation to Mr Corcoran under s 14 of the SRC Act in respect of his “bilateral sensorineural hearing loss” condition?
ANALYSIS
Is Mr Corcoran’s hearing loss condition an “injury” or a “disease”?
Section 14 of the SRC Act, titled “Compensation for injuries”, states:
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
The term “injury” is defined in s 5A of the SRC Act (effective 13 April 2007) as follows:
5A(1) In this Act:
“injury” means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
………. [Emphasis added]
The term “injury” is defined in s 5A of the SRC Act to include a “disease”.
Prior to 13 April 2007, the definition of “injury” was contained in s 4(1) of the SRC Act. The definition of “injury: in s 5A of the SRC Act, which applies with effect from 13 April 2007, is in substantially similar terms to its predecessor in s 4(1) of the SRC Act.
The term “disease” is defined in s 5B of the SRC Act (effective 13 April 2007) as follows:
5B(1) In this Act:
“disease” means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee. [Emphasis added]
Section 5B(2) of the SRC Act states that in determining whether an ailment was contributed to, to a significant degree, by an employee’s employment by the Commonwealth, the following matters “may” be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks, involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
Further, s 5B(3) of the SRC Act states that for the purposes of the SRC Act the expression “significant degree” means:
a degree that is substantially more than material.
The term “ailment” is defined for the purposes of the definition of “disease” (in s 5B of the SRC Act) in s 4 of the SRC Act, as follows:
“ailment” means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Prior to 13 April 2007, the definition of “disease” was found in s 4(1) of the SRC Act. The definition of “disease” in s 5B of the SRC Act, which applies with effect from 13 April 2007, is substantially different to its predecessor in s 4(1) of the SRC Act. The relevance of this discussed further below: see paragraphs 42 - 44.
It is not in dispute that Mr Corcoran suffers from “bilateral sensorineural hearing loss”. What must be decided, however, is whether Mr Corcoran’s hearing loss condition constitutes an “injury” or a “disease” for the purposes of the SRC Act.
As I said in Rose and Military Rehabilitation and Compensation Commission [2015] AATA 583 at [52], no consistent view exists in relation to whether hearing loss is an “injury” or a “disease” for the purposes of the SRC Act.[20] The question of whether a particular hearing loss condition should be characterised as an “injury” or a “disease” ultimately turns on the facts of a particular case.[21]
[20] Banks v Comcare [1996] FCA 382 and Re Nolan and Military Rehabilitation and Compensation Commission [2012] AATA 454.
[21] Comcare v Eteridge [2006] FCAFC; (2006) 149 FCR 522 and Tralongo and Military and Rehabilitation Compensation Commission [2004] AATA 1242
Where a condition has characteristics such that it may be considered as either a “disease” or as an “injury” the authorities point to the need to establish a sudden change to the underlying pathophysiology for the condition to constitute an “injury”, as distinct from a “disease”.[22]
[22] Kennedy Cleaning Services v Petkoska (2000) 200 CLR 286; Australia Postal Corporation v Burch [1998] FCA 42
Based on the medical reports provided by Dr Mitchell, ENT Specialist, dated 9 December 2013 (see paragraph 11 above) and 24 March 2015 (see paragraph 24 above), Mr Corcoran’s hearing loss was diagnosed as “presbycusis”, which is a slow degenerative process associated with ageing[23]. There is no evidence before the Tribunal of any sudden pathophysiological change in Mr Corcoran’s “bilateral sensorineural hearing loss” condition. In such circumstances, Mr Corcoran’s hearing loss condition should be regarded as an “ailment” (as defined in s 4 of the SRC Act) and, therefore, a “disease” (within the meaning of s 5B(1) of the SRC Act) rather than as an “injury” (within the meaning of s 5A(1) of the SRC Act).
Did Mr Corcoran’s employment with AA prior to 13 April 2007 contribute to his hearing loss condition “to a material degree”?
Did Mr Corcoran’s employment with AA from 13 April 2007 contribute to his hearing loss condition “to a significant degree”?
[23] See Re Sandercock and MRCC [2013] AATA 517.
As stated above (in paragraph 36 above), the definition of “disease” in s 5B of the SRC Act applies with effect from 13 April 2007. Prior to this, the definition of “disease” in s 4(1) of the SRC Act applied. These two definitions are substantially different. Specifically, the former definition of “disease” in s 4(1) of the SRC Act required that a claimant’s disease was contributed to “to a material degree” by the employee’s employment (as opposed to being contributed to “to a significant degree”, as required by s 5B of the SRC Act). Further, s 5B(2) of the SRC Act sets out a number of factors which may be taken into account in determining whether the requisite contribution exists (see paragraph 33 above) and s 5B(3) defines what is meant by “significant degree” (see paragraph 34 above). In contrast, the former definition of “disease” in s 4(1) did neither of those things.
Section 5A of the SRC Act (definition of “injury”) and s 5B of the SRC Act (definition of “disease”) were inserted into the SRC Act by items 11 and 41, respectively, of Schedule 1 to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Amendment Act). Item 41 (2) of the Amendment Act provides that for the purposes of the definition of “disease” in s 5B(1), an employee “suffers an ailment or aggravation on the day determined under subsection 7(4)” of the SRC Act. Section 7(4) of the SRC Act provides that the date of disease is the day on which the employee “first sought medical treatment for the disease, or aggravation” or the day when the disease “resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee”, whichever happens first.
Since Mr Corcoran’s employment with AA overlaps the changes to the definition of “disease”, effective 13 April 2007, the Tribunal is required to consider whether Mr Corcoran’s employment with AA, prior to 13 April 2007, contributed to his hearing loss condition “to a material degree” and, also, whether Mr Corcoran’s employment with AA, from 13 April 2007, contributed to his hearing loss condition “to a significant degree”. This exercise must be carried out prior to the consideration of the question of date of injury for the purposes of s 7(4) of the SRC Act.[24]
[24] Smith v Comcare [2012] FCA 502
There is no evidence before the Tribunal to suggest that Mr Corcoran was exposed to noise which exceeded the occupational limit of 85 db for a continuous period of 8 hours during each shift at any time during his 34 year employment with AA.[25]
[25] The Tribunal notes the exchange of emails between Mr Paul Dowsett (Senior Engineer, AA), Ms Melissa Silijak, Mr Barry MacFarlane (Technology Support Branch, AA) and Mr Ian Harding (Change Manager, Aeronautical Information Management) at Exhibit R1 at pp 122-125 and the oral evidence of Mr Ian Harding (former AusFIC Manager at AA).
Based on the content of the Ron Rumble Report (refer to paragraphs 16 to 22 above), the audiograms, dated 26 August 2013, 17 September 2013 and 28 October 2014 (refer to paragraphs 5, 8 and 23 above), the medical reports of Dr Mitchell, dated 9 December 2013, 24 March 2015, 28 August 2015 and 31 August 2015 (refer to paragraphs 11, 24 - 26 above), the oral evidence of Dr Mitchell at the hearing and the medical report of Dr Fagan, dated 31 October 2014 (refer to paragraph 23 above), the Tribunal finds that Mr Corcoran’s hearing loss condition cannot be explained on the basis of occupational noise exposure alone, given the difference in hearing loss displayed between the left and right ears, as discussed in these reports and audiograms.
There is no evidence before the Tribunal to support a conclusion that Mr Corcoran’s hearing loss condition was contributed to, “to a material degree”, by his employment with AA from 6 June 1978 to 13 April 2007. It is well-established that a “material” contribution requires more than a mere contribution.[26]
[26] Comcare v Sahu-Khan [2007] 156 FCR 536; 44 AAR 523.
Further, there is no evidence before the Tribunal to support a conclusion that Mr Corcoran’s hearing loss condition was contributed to, “to a significant degree”, by his employment with AA from 13 April 2007 until his retirement on 22 September 2013.
What is the date of Mr Corcoran’s hearing loss disease (injury)?
In such circumstances, it is unnecessary for the Tribunal to determine the date of disease (injury) pursuant to s 7(4) of the SRC Act: refer to paragraphs 42 above. However, for completeness, the Tribunal makes the following observations in relation to this issue.
The evidence before the Tribunal is that Mr Corcoran first sought treatment for his hearing loss condition on 22 August 2013 from Dr Wong: refer to paragraph 7 above. There is no medical evidence before the Tribunal to support a conclusion that Mr Corcoran was suffering from hearing loss prior to the audiogram undertaken on 26 August 2013: refer to paragraph 5 above.[27]
[27] Attachment 1 to Exhibit R3.
Is Comcare liable to pay Mr Corcoran workers’ compensation by Comcare under s 14 of the SRC Act?
For the above reasons, Comcare is not liable to pay Mr Corcoran workers’ compensation pursuant to s 14 of the SRC Act in respect of his “bilateral sensorineural hearing loss” condition.
Mr Corcoran’s position in relation to AA and Comcare
In his written submissions (undated), Mr Corcoran makes various claims concerning the conduct of AA and Comcare in relation to his workers compensation claim. Mr Corcoran made substantially similar submissions in his oral evidence at the hearing. In summary, Mr Corcoran contends the following:
· AA misused and misrepresented documentation and emails in their provision of “evidence” to Comcare in relation to his workers’ compensation claim.[28] More specifically, according to Mr Corcoran:
[28] Exhibit A1 at pp 6-7.
….all AIRSERVICES ‘evidence’ is post 2006 and relates to equipment installed/commissioned in 2005. This covers approximately 18% of the claimants work career/exposure to air-ground consoles. AIRSERVICES has failed to provide, and COMCARE has failed to follow up on equipment used between 1978 and 2005 or approximately 82% of the claimant’s work-life.
· Comcare mishandled documentation, failed to assess and/or investigate documentation, used documentation inappropriately, releasing documentation without validation of the data contained therein.[29] Mr Corcoran submits that:
COMCARE, in their decision making process, decided the claimants submission did not warrant their attention and the ‘evidence’ provided was irrelevant to the point that they continued AIRSERVICE’s ‘evidence’ in making their 2nd and final determination.
· AA and Comcare “based their data and determinations on falsehoods” and:
They have used the Ron Rumble Acoustic testing Report and other data relating to the same equipment as their basis for their determination. Ron Rumble Acoustic Testing and all other affiliated data that is headed HF RAMP or post 2006 HF Reporting relates to equipment installed in late 2005. AIRSERVIVES has not produced any definitive data and/or information relating to equipment the claimant used between 1978 and 2005. COMCARE, in all its communications and determinations has not identified nor in fact wished to identify this aspect. Dr Mitchell was blatantly mis-led with this report in drawing his conclusions in my absence.[30]
· At no time has any agency and/or party concerned made an attempt to understand or investigate HF and to Mr Corcoran’s “cited exposure to the vagaries of VHF & HF over 34 years of operational exposure to air-ground programs and the wearing of head-sets during the application of his job.”[31] According to Mr Corcoran:
No parties involved in this activity have had the courtesy or willingness to investigate the root cause and use of HF. AIRSERVICES & COMCARE have been more than willing to produce evidence that has suited their cause (e.g. Ron Rumble Acoustic Testing/statements that the Claimant undertook regular hearing tests / statement that once the Claimant became a Team Leader he was no longer subject to air-ground HF). When challenged over this evidence with relevant factual data, both parties displayed an abject unwillingness to readdress and/or validate what they had used in their determination.[32]
· Comcare has not adhered to its “Standard of Service” charter, namely that “We will treat you fairly and abide by the principles of natural justice”, in its dealings with Mr Corcoran.[33]
[29] Exhibit A1 at pp 8-9.
[30] Exhibit A1 at pp12-13.
[31] Exhibit A1 at p 15.
[32] Exhibit A1 at pp 15-16.
[33] Exhibit A1 at p 16.
While Mr Corcoran may not carry an onus of proof in relation to establishing that the Comcare Decision was not the correct and preferable decision in this application, he nevertheless has to adduce sufficient evidence to support his application for review.[34] It is not the task of the Tribunal to undertake investigative work on behalf of an applicant.[35] In this case, there is, as stated above, simply no evidence before the Tribunal to support a conclusion that Mr Corcoran’s hearing loss condition was contributed to “to a material degree” or “to a significant degree”, as relevant, by his employment with AA.
[34] Re Repatriation Commission and Delkou (1986) 9 ALD 358 at 370.
[35] Re Hanrahan and Repatriation Commission (2008) 102 ALD 399; BX200803180.
If Mr Corcoran is dissatisfied with the manner in which his workers’ compensation claim was handled by AA and Comcare, there are other avenues of redress open to him. However, the Tribunal is not the appropriate forum for this.
DECISION
For the above reasons, the Tribunal affirms the Comcare Decision.
I certify that the preceding 54 (fifty four) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh ...(Sgd) A Tran.....................................................................
Administrative Assistant
Dated 6 October 2015
Date(s) of hearing 9-10 September 2015 Applicant In person Counsel for the Respondent Mr M Hawker Solicitors for the Respondent Sparke Helmore Lawyers
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